Document Type

Article

Publication Date

12-1988

Keywords

Regulatory takings doctrine, Just compensation, Takings clause, First English Evangelical Lutheran Church v. County of Los Angeles, Nollan v. California Coastal Commission

Disciplines

Constitutional Law | Land Use Law | Property Law and Real Estate | Public Law and Legal Theory

Abstract

"The Regulatory Takings Problem" is the title given to a story, or narrative, that has become prominent in the literature on just compensation issues. The story is one of power and fear. It is about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation--private landowners and government regulators. It depicts scenarios of past or threatened abuse of power by local land-use regulators, and it looks to the takings clause generally and regulatory takings doctrine specifically as crucial corrective devices, essential to set the power imbalance aright. The dominant narrative describes local regulators as empowered, possessing enormous leverage over private landowners, who are depicted as unempowered.

There are narratives of power embedded in several opinions from the Supreme Court's 1987 quartet of takings cases. These narratives, stories about the power relationships between the parties involved in the cases, constitute a second level of the opinions, operating just below the abstract, impersonal doctrinal analysis. It is at this second level, not the first, that one can gain deep insight into the Court's recent takings decisions. Takings doctrine is generated not by any abstract methodological or theoretical concern, but by the pictures that judges have in their heads about the participants in the public land-use planning arena, pictures about who is empowered, who is unempowered and how those who enjoy a power monopoly have used that power to their strategic advantage.

The 1987 takings decisions have intensified discussion about the Court's methodology in takings law. In recent years the Court has rejected the use of any single comprehensive test to determine when government land-use regulations constitute takings. This Article argues that if the Court has reinvigorated rule-of-law values, it has done so in reaction to perceptions of the allocation of power in the relevant social relationships. These perceptions in effect constitute interpretations of events--interpretations whose meanings derive from distinct political visions. The conflicting descriptions of power expressed in the various opinions are not statements of fact subject to empirical verification. Rather, they are constructions of the social reality that takings doctrine is meant to address. Recognizing that the descriptions are only narratives exposes the contestability of every public conversation about basic visions of the appropriate political ordering of our society.

Publication Citation

Published in: Columbia Law Review, vol. 88, no. 8 (December 1988).

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